The question of whether former Baker City firefighter Jason Bybee explicitly told city officials he was willing to do any job in the city while he was on medical leave recovering from COVID-19 was a focus of his testimony under cross-examination Tuesday morning, March 18, in Baker County Circuit Court.

Luke Reese, the attorney representing the city and former city manager Jonathan Cannon in Bybee’s $800,000 civil lawsuit, led Bybee through a series of emails, letters and other documents, mostly from 2021.

Bybee contracted COVID-19 while responding to a medical call on Oct. 26, 2020. He never returned to work as a firefighter/EMT, although he did light duty work in the fire department during the spring of 2021.

Cannon fired Bybee on Feb. 7, 2022.

Bybee filed the lawsuit in August 2023. He contends his firing was illegal because the city failed to accept that his diagnosis with long COVID met the legal standard for a workplace disability according to the U.S. Department of Justice.

The trial before a 12-member jury started Monday morning.

Testimony is scheduled to resume at 2:30 p.m. Tuesday.

Cross-examination

Bybee, who answered questions from his attorney, Richard Myers, on Monday afternoon, was on the stand for cross-examination for a little over two hours Tuesday morning.

Reese referred Bybee to a letter from the city, dated May 24, 2021, stating that the light duty work Bybee had been doing in the fire department, including such things as organizing medical supplies, would end May 25, 2021.

Bybee testified that he had hoped to qualify for a therapy program in Boise designed to help him regain the ability to work as a firefighter. Bybee testified that SAIF, the city’s workplace compensation insurer, rejected his request to participate in that program.

Reese also asked Bybee about a letter Bybee wrote to the city on June 29, 2021, stating that a physician’s assistant who was treating Bybee concluded that due to his lingering COVID symptoms, including breathing difficulties and cognitive issues, he could not then return to work as a firefighter.

In the letter, Bybee asked the city to accommodate his disability, including the potential for a light duty job of 35 to 40 hours per week.

Bybee told the jury that he told city officials he “would take anything,” meaning any city job that was available.

“I was asking for any work,” Bybee testified.

In response to Reese’s question, Bybee said his ultimate goal was to return to work as a firefighter.

When Reese asked Bybee if he was, in 2021, willing to give up his firefighting job, which the city had held open for him, in exchange for a different city job, Bybee answered that he did not believe his request for a light duty job was contingent on his forgoing a chance to return as a firefighter.

Reese continued to question Bybee about the issue of whether, in asking for light duty work, he felt he had made it clear to city officials that he would accept jobs outside the fire department, even if that meant the city would fill his position that had been vacant since he became ill in November 2020.

Bybee answered that he didn’t think he needed to specify to city officials that, in asking for any available job, he was also in effect giving up the chance to return to his firefighting job.

“I didn’t know I had to differentiate the terminology,” Bybee said.

When Reese asked Bybee if he thought it was possible that he had a “misunderstanding” with city officials about what, exactly, Bybee was willing to do for a job with the city, Bybee answered “It’s hard to make an accurate statement on that.”

Bybee reiterated multiple times that he believed he had made it clear to city officials that, unless and until he was cleared by a doctor to return as a firefighter, he was willing to take any other job wit the city.

Medical clearance to work as a firefighter

That issue — Bybee’s physical ability to do the demanding work of a firefighter/EMT — was also a central part of Reese’s cross-examination.

Reese showed jurors documents showing that a doctor hired by SAIF had judged Bybee able to return to work as a firefighter as of early June 2021.

Bybee said a physician assistant who had treated him concluded later in June that Bybee was not capable of working as a firefighter.

That prompted Bybee to write the June 29 letter asking for a light duty job.

Jurors also saw a handwritten note from Dawn Kitzmiller, who served as the city’s interim human resources manager during the summer of 2021.

Kitzmiller wrote in the note, dated July 22, 2021, that Bybee was confident he would be cleared to work as a firefighter by Aug. 17, and that Bybee also “requests work anywhere in the city.”

In response to Reese’s question, Bybee answered that “I think I was always confident” he could resume work as a firefighter, but that until he was medically cleared he sought any other job with the city.

Reese showed the jury a letter from the city to Bybee, dated July 29, 2021, calling on Bybee to return to work as a firefighter on Aug. 4.

Bybee testified that he was not able to meet that timeline.

“I knew I was still struggling with cognitive, cardiovascular, other issues,” he said. “I didn’t want to put people in danger. It’s not safe to put me in an emergency role.”

After Bybee gave the city a note from a doctor stating that he wasn’t able to return to work Aug. 4, the city on Aug. 5 sent him another letter asking him to start work as a firefighter Aug. 13.

In response, Bybee visited a doctor who wrote a memo dated Sept. 2, 2021, stating that he could not return to work as a firefighter.

A Sept. 7 letter from the city to Bybee states that there was no light duty work available then.

Reese asked Bybee again about what he had told the city, in terms of his willingness to take a job outside the fire department.

“I felt I had made it clear that I would do any job,” Bybee testified.

He also told jurors that he didn’t think he was responsible for searching for another city job, as he believed the city would let him know about openings he might qualify for.

Facebook posts

Reese also questioned Bybee about his physical condition, specifically his ability to return to work as a firefighter, during the winter and spring of 2021.

Reese showed Bybee, and the jury, several Facebook posts that were either from Bybee’s personal account or from another account in which Bybee was tagged.

The first, dated Feb. 13, 2021, about three and a half months after Bybee became ill with COVID, tagged Bybee in photos of all-terrain vehicles in the snow near Sumpter.

Bybee, in response to Reese’s question, testified that he had gone with friends to watch snowmobile races that day.

Bybee told jurors that at that time he felt his COVID symptoms were “still pretty significant” but that he was “trying to get back to as much normal life as I could.”

Reese showed the jury a letter from the city, dated Feb. 3, 2021, stating that because a doctor had released Bybee for light duty work, the city was offering to have him start doing such work in the fire department on Feb. 8, with a monthly salary of $5,353.

Bybee said that was about the same as his salary as a firefighter.

Reese asked Bybee about an email Bybee wrote to then-Fire Chief Sean Lee on March 22, 2021, stating that Bybee had scheduled vacation for April 7-25 to attend a family event in Arizona.

Reese showed Bybee and the jury Facebook posts from April 15 and April 18, 2021, when Bybee was at a restaurant and riding in a convertible in Phoenix, and from April 22 when he was riding in a side-by-side in Moab, Utah.

Reese asked Bybee about his condition, and his COVID symptoms, at that time.

Bybee answered that returning to recreational pursuits he enjoys, such as riding side-by-sides, was part of his “trying to get back to a normal experience,” something his doctors encouraged so long as he was able to.

Dispute with SAIF

In 15 minutes of redirect questioning from his attorney, Bybee testified that during 2021, when he was exchanging letters and emails with city officials, he was also in a dispute with SAIF regarding his disability claim for long COVID.

“It was a struggle the whole time,” Bybee said.

He testified that SAIF denied his claim, a decision he appealed in August 2021. Bybee said the appeal was pending when he was fired in February 2022, but that he later prevailed in state court when a judge ordered SAIF to accept his disability claim for long COVID.

Bybee testified that he believed a state law, ORS 659A.043, protected him from being fired while recovering from an on-the-job injury.

Bybee said that although he was happy to be able to open his business, 4Play Performance, running a small business lacks the stability of a job with the city, as well as fringe benefits such as health insurance and retirement.

“It really means a lot to me to have gainful employment,” he testified.

In response to questions from Myers, Bybee said he would have accepted any of the city jobs that became vacant during 2021 or early 2022, including a water meter reader, casher in the water department, aide to the fire chief and evidence technician in the police department.

Bybee applied for the latter job just after he was fired, but he didn’t get the job.

Myers called as a witness Sherry Ludwig, who testified for about five minutes about jobs she had with the city during 2021 and 2022.

Ludwig testified that during less than a year she was hired for two jobs, including the fire chief aide, which she started in mid-December 2021, and was offered a third job which she didn’t take.

Nurse who interviewed Bybee testifies

After the lunch break, Myers called Dr. Sharla Paso, who has a doctor of nursing practice degree and was working as manager of clinical education at Oregon Health Science University in Portland when the COVID pandemic started.

“We lived and breathed COVID for those two years,” said Paso, who left OHSU in 2022 and testified remotely via WebEx.

Paso testified that she reviewed Bybee’s medical records and descriptions of jobs available with Baker City during Bybee’s medical leave. She said she interviewed Bybee, via Zoom, on March 7, 2025.

Paso told the jury that she believes Bybee’s symptoms are typical of long COVID.

In response to Myers’ questions, Paso testified that she doesn’t believe Bybee, when he was fired in February 2022, was capable of resuming his job as a firefighter and EMT.

Paso said Bybee’s cognitive issues prevented him from making the fast decisions that can mean the difference between a patient living or dying.

Paso testified, however, that she believes, based on how Bybee described his physical and mental condition at the relevant times, that it was “more likely than not” that he could have done the jobs the other jobs that were available when Bybee was on leave — the meter reader, fire chief aid, water department cashier and evidence technician.

When Myers noted that a cashioer has to keep track of dollar amounts and other figures, Paso said she believes the stress would be less than working on an ambulance crew.

“(A cashier) probably isn’t going to have someone die if he makes the wrong decision,” Paso said. “I think (Bybee) could have handled it.”

In cross-examination, Paso acknowledged that she isn’t treating Bybee as a patient and hasn’t diagnosed his conditions.

When Reese asked Paso if her testimony about Bybee’s abilities, both physically and mentally, during 2021 and 2022 were “guesses,” Paso disagreed.

“I would not say it’s a guess,” she said.

Paso acknowledged, though, in response to Reese’s question, that her opinion was about Bybee’s physical and mental capacities, but not whether he was otherwise able to do the other city jobs proficiently.

Paso also said, in response to Reese’s question, that she is being paid by Bybee’s attorney to testify, at $400 per hour.

She testified for about 15 minutes on Tuesday.

On redirect, Myers asked Paso whether her being paid to testify affected her “integrity.”

“No,” she answered. “I get paid whether I testify the way you want me to or not.”

Prior to the lunch break, Reese and Myers made arguments to Judge Matt Shirtcliff, outside the jury’s presence, about Paso’s potential testimony.

Reese questioned whether Paso, though an expert witness, could testify about Bybee’s ability to do jobs in 2021 and 2022 based on his medical records and what Bybee told her during their conversation more than two years later.

Shirtcliff ruled that he would allow Paso to testify before the jury, noting that her testimony “would certainly be subject to cross-examination.”

Jury instructions

After Paso’s testimony, Shirtcliff excused the jury for the day.

He heard arguments from the attorneys on two motions and then adjourned to his chambers to work with the attorneys on jury instructions.

The trial will resume at 9 a.m. on Wednesday, March 19.